Maui Boards May Soon Be Able To Get Back To Business With Settlement Agreement

A legal dispute that for weeks has ensnared a string of appointments to Maui County boards and commissions is about to come to a close with a deal that would correct the process used to fill vacant seats, according to people involved in the settlement.

The agreement, which the Maui County Council unanimously supported via a resolution Tuesday, calls for using the recently updated procedure laid out in the county charter.

Council Chair Alice Lee said in an interview last week that she wants to quickly execute a settlement agreement but declined to discuss the content of the resolution in detail.

“We do not want to continue to obstruct business, and this is what the lawsuit is causing — an obstruction to county business,” Lee said.

Boards and commissions have an important role in shaping the future of Maui County communities. Some of these panels tackle the county’s most pressing challenges, ranging from homelessness and government ethics to development planning and police accountability. Others make binding decisions, such as the salary of elected officials or the winners and losers in tax bill disputes.

Despite their importance, the county’s 37 boards and commissions have an 18% vacancy rate that’s at least partly the result of a longstanding volunteer recruitment problem. Of the 304 total positions, 56 seats are unfilled.

And while the lawsuit drags on, those vacant seats have little hope of being filled.

The short-handed Board of Ethics is one of numerous panels that desperately needs more members. The nine-member board has four vacant seats. As a result, the panel is unable to even meet unless all five if its members are present. Filling those empty chairs is considered crucial to the board’s usefulness.

The council recently named Chivo Ching-Johnson to join the ethics board, but his appointment is one of dozens that are effectively on hold despite how badly new members are needed.

“None of that can happen until the lawsuit is resolved,” Lee said. “That’s the reason why we want to settle it, so that we can get down to business and back to business.”

A Dispute Over Process Has Major Impact On County Business

At issue is the process by which Mayor Richard Bissen’s office and the Maui County Council dealt with disputes over nominees.

A lawsuit filed last month by Dick Mayer, a retired University of Hawaii Maui College economics professor, says that the mayor should have gone back to the drawing board to generate a new slate of nominees when 26 of his original picks were rejected by the council.

That’s not what happened earlier this year when Bissen nominated 40 people to serve on nearly two dozen boards and commissions. 

The mayor named his nominees in a letter dated Jan. 31 — the deadline to submit them. But the county clerk’s office did not receive the letter until Feb. 1. 

The council said the mayor missed the deadline and tried to make its own appointments instead. 

In April, Maui Judge Kelsey Kawano blocked construction executive Danny Ray Blackburn’s appointment to the county Planning Commission after Mayer disputed the county’s process, contending it went against protocol laid out in the county charter.

The county’s Corporation Counsel responded by advising all recent appointees to boards and commissions to hold off on participating until the lawsuit is resolved. 

A major concern, according to Mayer’s attorney Lance Collins, is that decisions made by the council’s new appointees, who he said were improperly seated, could later face legal challenges.

“If you get seated and you aren’t lawfully entitled to that office, you can be removed and your actions can be canceled,” Collins said. “And that could be very disruptive. It could wreak tremendous havoc on the business of all of these boards and commissions.”

Mayer declined to comment until the settlement is finalized.

But a more universal concern, Collins said, is that the council thwarted the will of Maui County voters when it followed an incorrect appointment process.

Maui County voters approved a ballot question in the 2022 election that created an independent nominating board to recruit and install residents on the county’s boards and commissions. The charter amendment aims to generate a selection process for board and commission members that’s less political and more focused on merit.

Under the previous system, the mayor or council recruited and evaluated applicants for boards and commissions on their own.

The nominating board consists of nine members from each of the council residency areas, who are appointed by the mayor and approved by the council. But the newly assembled nominating board approved by voters is still writing its rules for self-governance and did not assemble any lists of nominees to fill vacancies on the county’s boards and commissions. So the mayor stepped in with his own list of nominees. 

The lawsuit does not dispute the 14 people that the council and mayor agreed on to serve as appointees. But it faults the council for generating its own list of nominees and attempting to independently approve those appointments — a power the council no longer has under the new charter amendment, according to Collins.

Lee said the charter is unclear on how the council should have proceeded.

“Unfortunately, the folks who created the language for this provision in the charter did not do a complete job,” she said. “It was clear in the old charter provision, so we followed the old charter because there was nothing in the new procedure that created a process for us to follow.”

What should have occurred, according to Collins, is the mayor should have provided a new list of nominees to the council and the council should have approved or disapproved those nominees. The process should play out as many times as necessary until the mayor and the council have forged an agreement on all 40 appointees.

‘Delays In Appointments Don’t Help’

The council’s appointees matched the mayor’s original nominations in 14 instances. These folks are expected to take their seats as soon as the settlement becomes official.

They are: Joseph Wilson, who is appointed to serve on the Board of Variances and Appeals; Arnold Wunder, to the Civil Service Commission; Dylan Andrion, to the Cost of Government Commission; Sterling Higa, to the Cost of Government Commission; Deborah Moore, to the Cost of Government Commission; Sally Barr, to the Kula Agricultural Park Committee; Lu Ann Lankford-Faborito, to the Liquor Control Adjudication Board; Rainey Dock Mathews, to the Commission on Persons with Disabilities; Patty Copperfield, to the Commission on Persons with Disabilities; Debra Kelly, to the Molokai Planning Commission; Michael Williams, to the Real Property Tax Review Board; Lindsey Ball, to the Salary Commission; Gerri Lewis, to the Salary Commission; and Jeremy Stoddart, to the Urban Design Review Board.

At least one of these appointees has decided to withdraw, however, citing the lag in their ability to pitch in to make a difference.

Higa, 33, of Haiku applied to serve on the Cost of Government Commission last June and, although the mayor and the council endorsed his appointment, he’s so far been unable to participate.

The nine-member Cost of Government Commission has five vacancies, which undermines the productivity of the body charged with promoting economy and efficiency in government by reviewing existing county government processes and making recommendations to improve them.

Higa said he stepped down from his contested seat on the commission in early May after another organization asked him for more volunteer hours.

“It’s hard to commit time to the possibility of volunteering when there are actual opportunities to volunteer available,” he said. “One of the challenges is getting people to volunteer in government. And delays in appointments don’t help.”

Civil Beat’s coverage of Maui County is supported in part by a grant from the Nuestro Futuro Foundation.